Tagged as: UK Law

Application, Grounds and Remedies for Judicial Review Lecture

Introduction

This section follows on from the previous section, which discusses the theoretical basis of judicial review and the requirements for judicial review. In this section, the procedural process for making judicial review will be considered by outlining the stages established within Order 54 of the Civil Procedure Rules. Secondly, it will analyse the various grounds for judicial review, which were outlined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, as illegality, irrationality and procedural impropriety. Further explanation of the exact meaning of these terms will be given. The final part of this chapter looks at the various remedies for judicial review. It is important to remember that all remedies are discretionary and some, such as injunctions, are also relied upon in private law hearings. However, certain orders such as quashing orders or mandatory orders are exclusive to judicial review proceedings.

A. Applications for Judicial Review

In 1977, a new Rule of the Supreme Court (Order 53) created the procedure of 'application for judicial review'; a reform confirmed by Parliament in 1981. Order 54 of the Civil Procedure Rules replaced Order 53 in 2000. Section 31 of the Senior Courts Act 1981 provides that applications for mandatory, prohibiting and quashing orders must be made by an application for judicial review. Injunctions can also be granted under section 31(2) in judicial review cases. Section 31(3) requires that permissions is needed for every application of judicial review.

The first step in the judicial review procedure is that the claimant complies with the pre-action protocol. This includes a letter to the public authority outlining their claim with the aim that litigation can be avoided. If it cannot be avoided, the claimant must file a claim with the Administrative Court outlining the decision that they require to be reviewed. The defendant must state within 21 days whether they intend to context the claim. A permissions hearing will usually be held on the papers before a single judge, but a claimant can ask for a hearing with a renewed application for permission. An appeal to the Court of Appeal (CA) is a possibility if permission is withheld following this hearing.

Claims must be made promptly and in any event within a three month period. The court may extend the time if there is a good reason to do so. The review can be refused under section 31(6) Senior Courts Act if it would 'lead to substantial hardship, or would substantially prejudice the rights of any person, or would be detrimental to good administration'. Such written evidence as is available must be used to support a claim for judicial review and a witness statement confirming the truth of the facts relied upon; the defendant might also submit evidence in response.

To establish standing to make a claim for a judicial review, the court must find that the applicant has 'sufficient interest in the matter to which the application relates' (section 3(1) Senior Courts Act 1981). The court then has discretion to refuse an application by those who are without legitimate concern in a particular issue. In R v Employment Secretary, ex p EOC [1995] 1 AC 1 an ordinary taxpayer had interest to challenge the government's proposal to designate a treaty providing extra funds to the EU as a 'Community treaty'. The Equal Opportunities Commission had standing to challenge statutory provisions, which discriminated against women in breach of their rights under EU law [R v HM Treasury, ex p Smedley [1985] QB 657].

A different test of standing has been established under the Human Rights Act 1998 (HRA) section 7. Only someone who is a victim within the meaning of Art 34 ECHR can bring a claim that a public authority has acted in contravention of a Convention right under section 6 HRA. 

B. Grounds for Judicial Review

As discussed in Section 11.1, the three grounds for judicial review are outlined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, as illegality, irrationality and procedural impropriety. Each ground will be considered in further detail here.

i. Illegality

Illegality is a very broad ground for review and covers a wide range of possible abuses by public authorities. It is worth reviewing Lord Diplock's definition of illegality in Council of Civil Service Unions, he stated [at 410]

"By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

Lord Diplock's quote explains the broad range of potentially illegal acts that can be carried out by public authorities, acting in excess of their legal powers. When public authorities act outside of their legal authority, they are acting ultra vires; this is a central principle of administrative law.

The most straightforward illustration of the principle of ultra vires is where a public authority has undertaken activities for which they have no legal authority. An important early case that illustrates this kind of illegal act is Attorney General v Fulham Corporation [1921] 1 Ch 440.

The 'fairly incidental rule' implies that if the public authorities actions are fairly incidental to the powers expressed in Statute, they may be permissible. However, this was not the case in Fulham Corporation.

(a) Discretion

In other circumstances, a public authority has the discretion to act. Frequently claims for judicial review arise out of a public authority's exercise of discretion within their statutory powers. Many legislative provisions confer discretion upon a public authority. Examples of discretionary powers are provided under the Gambling Act 2005, which states that "the [Gambling] Commission may issue operating licences in accordance with the provisions of this Act" (Gambling Act 2005, section 65(1)).

Section 3 Immigration Act 1971 enables a non-British citizen to be deported from the United Kingdom, where the Secretary of State deems the deportation to be conducive to the public good" (Immigration Act 1971, section 3). Under such a provision, the authority may exercise discretion; it is not obliged to deport an individual, but has the choice to do so.

The essential element of a discretionary power is choice, whereas a duty removes discretion and takes away choice. Certain statute laws contain a number of criteria that an authority should take account of when exercising its discretion. Discretion has the advantage of conferring flexibility and allows a public authority to deal with situations on a case-by-case basis. It is problematic in that it allows authorities to deal with each case differently; however, it may lead to public authorities drawing up policies or guidelines to help. This may have the problem of fettering discretion, which is another form of illegality.

Administrative law has developed through the 1950s in part to prevent the arbitrary or inconsistent use of discretionary powers. Discretion must be exercised in a manner that complies with principles summarised by Lord Diplock in the CCSU case. Discretion will be unlawful if the exercise of discretion is irrational, illegal, or there is procedural impropriety.

(b) Discretion is not unrestricted

The fact that discretion must be unfettered requires that it must be exercised according to the purpose of the law that gives rise to the discretion.

(c) Illegality: discretion and policies

In cases were a public authority is exercising a discretion which affects a large number of people, it may adopt rules or policy for guidance. However, rules must be applied on a case-by-case basis without rigidity. If circumstances are included within a case that are unforeseen within regulations, these circumstances must be considered separately. A policy can be challenged as unlawful or because it breaches a Convention right.

The following cases are examples of when courts have held that a public authority has acted unlawfully by applying a policy too rigidly.

(d) Delegation, Abdication and Dictation

A body to which a responsibility to exercise discretion has been granted must not delegate that responsibility.  A statute that authorises delegation does not generally permit further delegation. In Barnard v National Dock Labour Board [1953] 2 QB 18, that national board that was delegated disciplinary functions over registered dockers to local boards; a local board acted unlawfully when it delegated the power to suspend dockers to port managers.

Delegated authority of ministers can be lawfully exercised by other officials for whom the minister is responsible to Parliament or by a junior minister. The minister cannot delegate the responsibility to another minister who has a different area of responsibility. Similar principles apply to statutory agencies. In R v Police Complaints Board, ex p Madden [1983] 2 All ER, it was found that the Police Complaints Board could not adopt a policy of taking no action on complaints which the DPP had decided should not lead to criminal proceedings. Local government now has wide discretion to delegate their functions to committees, sub-committees and officers.

(e) Improper Purpose and Irrelevant Considerations

The exercise of power for an improper purpose is invalid. Improper purposes can include malice or dishonesty on behalf of a public official.  A city council was empowered to buy land compulsorily for the purpose of extending streets or city improvements, could not compulsorily buy land to benefit from an anticipated increase in the value of the land [Municipal Council of Sydney v Campbell [1925] AC 338].

In Congreve v Home Office [1976], QB 629 the Home Office threatened a number of TV licence holders with the revocation of their licence if they failed to pay an extra £6. The CA held that it was an improper use of executive power to use threats as a means of extracting money.

In Potter v Magill [2001] UKHL, 67, [2002] 2 AC 357, the House of Lords (HL) held that it was unlawful for the Westminster Council to sell off council houses in certain parts of the city in the belief that home owners are more likely than council tenants to vote Conservative.

(f) Error of Law and Error of Fact

An error of law by a public authority is outside of its jurisdiction and will be declared invalid by the courts. 

A policy to ban deer hunting across its area by a county council was found to exceed the extent of the county council's powers and the policy was quashed [R v Somerset CC, ex p Fewings [1995] 3 All ER 20]. These illustrate the point that the decision maker is expected to appreciate the extent of their powers and to act within them.

Judicial review does not provide a right of appeal, so an error of fact must not ask the court to substitute the court for the decision maker in deciding an issue of fact. However, if there was an evident mistake in finding of fact that is directly material to the decision the issue may be subject to judicial review.

There are four conditions for the jurisdiction of judicial review under an error of fact:

1. A mistake as to an existing fact;
2. The existence of the fact must be uncontentious;
3. The claimant should not have been responsible for the mistake;
4. The mistake must not have been material to the earlier decision.

ii. Irrationality

In CCSU, Lord Diplock explained that irrationality means unreasonableness.  Unreasonableness has been referred to many times by courts, in Roberts v Hopwood [1925] AC 578, [1925] All ER 24, the House of Lords held that discretionary powers must be exercised reasonably.

The third element of this test is particularly difficult to prove. It requires something overwhelming to prove it. One such decisions was established in Backhouse v Lamberth LBC, in which a housing authority passed a resolution under s.111 (1) Housing Act 1957, which imposed an increased rental of £18,000 per week on a house that was unoccupied and uninhabitable. The LBC had done this in order to exempt itself from increasing rents of council houses under the provisions of s. 63(1) Housing Finance Act 1972. The court held that this decisions fulfilled the third criteria of Wednesbury in that it was a decisions which no reasonable authority could have made.

(a) Proportionality

Proportionality can be distinguished from 'Wednesbury unreasonableness'. The general standard for review under the HRA or in EU law is proportionality. Proportionality requires that the court take additional steps and engages with the challenged decision in much greater depth. It is possible that in time proportionality will be recognised as a ground for judicial review in purely domestic judicial review cases with no connection to the HRA or EU law.

iii. Procedural Impropriety

The correct procedure for making a decision must be observed for it to be lawful.  Procedural review thus examines the process by which a decision has been reached. Certain procedures are contained within the Statute conferring the powers on the public authority, others are found within common law doctrine of natural justice.

(a) Statutory requirements

There is certain procedural impropriety that invalidates administrative actions and others that does not. In London v Clydeside Estates Ltd v Aberdeen DC [1979] 3 All ER 876 a planning authority failed to notify landowners of their right of appeal to the Secretary of State against a decision that adversely affected them; this failure invalidated the decision.

(b) Natural Justice

The principles of natural justice are based on assumptions made historically by judges about how justice should be done. Many aspects of common law natural justice are now reinforced by the HRA by the right to a fair hearing under Article 6 ECHR. Two main rules of natural justice include (a) the rule against bias, i.e that a fair judicial decision is made by an impartial judge; and (b) the right to a fair hearing, that each party know the case against themselves and be given the right to defend themselves.

The rules of natural justice have been applied to many public authorities; the right of individuals to know the charges against them has been applied to the use of disciplinary powers, by universities [Ceylon University v Fernando [1960] 1 All ER 631] and trade unions [Breen v AEU [1971] 2 QB 175]. The rule against bias has also been applied to local authorities. A decision by the Barnsley markets committee to revoke a stallholder's licence for a trivial misdemeanour was quashed. The committee had heard the evidence of the market manager in the absence of the stallholder [R v Barnsley Council, ex p Hook [1976] 3 All ER 452].

The importance of natural justice in judicial review proceedings was highlighted in Ridge v Baldwin. The HL found that natural justice required that a hearing should have been given before the committee exercised its power to dismiss the chief constable; the failure to undertake a hearing invalidated the dismissal. Ridge v Baldwin established many of the foundations of the current judicial review procedures. The findings in Ridge were then extended to police officers [Chief Constable of North Wales v Evans [1982] 3 1 All ER 141] school teachers [Malloch v Aberdeen Corpn [1971] 2 All ER 1278],  market stall holders [Hook], residents of local authority homes at risk of closure [R v Devon CC, ex p Baker [1995] 1 All ER 73] and convicted prisoners in respect of prison discipline and parole hearings [R v Home Secretary, ex p Doody [1994] 1 AC 531].

Natural justice is now more commonly referred to as fairness. In Doody, Lord Musthill derived six principles from the authorities in order to explain the meaning of fairness:

1. It is assumed that powers conferred by Parliament be exercised in a fair manner
2. The standards of fairness develop over time;
3. Fairness is dependent upon the context of the decision;
4. An essential element of this context is the statute which confers the discretion upon the public authority;
5. Fairness may require that anyone who would be acted adversely by the decision have the opportunity to make representations prior to the decision or afterwards with the view to its modification;
6. A person affected must be informed of the gist of the case, which must be answered.

C. Remedies for Judicial Review

Remedies in judicial review cases are discretionary, even if a public authority has been found to have acted unlawfully, the court may refuse to issue a remedy if this is in the public interest. This broader public interest might be a consideration that leads to public finances. This can be contrasted with private law cases where a claimant is entitled to relief. Notwithstanding this, it is not common for courts to refuse a remedy in public law litigation. There are three possible remedies, which are available in judicial review proceedings: quashing orders, mandatory orders and prohibiting orders.

Quashing Orders

Quashing orders are the most commonly sought after remedy, their effect is to quash or reject as invalid, unlawful administrative decisions. If the court finds a decision has been made in an unacceptable way, the decision can be quashed and the decision maker can be required to reconsider their decision in an acceptable way.  The courts might also rule that a decision itself is unlawful, in that it was unreasonable, disproportionate, or incompatible with the claimant's substantive legitimate expectations, or a decision that the maker had no jurisdiction to make. In such circumstances, a quashing order can compel the making of a particular decision.

Mandatory and Prohibiting Orders

Prohibiting orders are anticipatory in effect; they are issued to prevent unlawful action from being taken. In R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299 an LA decided to issue some new taxi licences in breach of an assurance that there would be a cap on licences. Existing licence holders opposed the proposed course of action, due to threat to their business.  The court issues a prohibiting order.

Mandatory orders compel public authorities to take legally required acts. Mandatory orders are also relevant in relation to discretionary powers such as a duty to act fairly. In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, a mandatory order was issues to require a decision maker to exercise discretion in line with implied duties.

Injunctions

An injunction is equivalent to a prohibiting order in that it prevents a body from taking unlawful conduct. It can be distinguished from prohibiting order; injunctions can also be granted in ordinary proceedings. Injunctions can also be interim measures, for which the courts apply a three-stage test:

1. Has the claimant shown prima facie that there is a 'serious issue to be tried'?
2. Would damages be an adequate remedy, if the act were carried out?
3. The court applies a balance of convenience test by considering the implications for both parties.

After a period of considerable uncertainty, it was established in Re M [1994] 1 AC 377 that that injunctions could be granted against Ministers acting in their official capacity, leading to contempt of court for failure to comply, which is a criminal offence. Since the Minister is acting in their official capacity they cannot be imprisoned or fined personally, which has been considered to be a dangerous concession. There will be political ramifications of such an act however.

Declarations

Declarations are a statement by the court that the legal issue has been brought to its attention. Unlike injunctions, they are non-coercive remedies and can be disregarded without legal consequences. They are appropriate when question shave not yet fully crystallised into specific legal disputes, such as when a claimant might wish to rule on some advice or guidance that they government has given to the unlawful acts by others.

Courts have accepted that they should act with caution in their use of advisory declarations; it does mean that courts accept that they play a role in clarifying the law before a dispute arises as opposed to after the event. This buttresses the rule of law concept of certainty.

Damages

Part 54 Civil Procedure Rules provides that a claim for judicial review might include a claim for damages in conjunction with another remedy. This remedy cannot be sought as the sole remedy.

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